Do Title IX and NIL play well together? Some urge caution.
A number of Name, Image and Likeness deals might run afoul of federal Title IX regulations, some experts say. “I think Title IX is being completely ignored,” says one advocate.
Maddy Siegrist, star Villanova basketball player, has had a front row seat for the first year of Name, Image and Likeness opportunities, suddenly getting a chance to make money off her own. It’s not a sudden life-changing windfall, Siegrist suggested, but it’s not nothing.
“It’s been an exciting year, going from one extreme to the other,” Siegrist said. “You couldn’t take anything, no extra benefits — to now, it’s wide open.”
Siegrist’s credentials led to opportunities. She was the 2021-22 Big East player of the year in a league that includes Connecticut and also was named a third-team USBWA All-American. She’s been Villanova’s leading scorer for three seasons, been first-team All-Big East all three years, and is a two-time Big 5 player of the year.
On the NIL front, Siegrist began her efforts in areas she could closely control.
“I made T-shirts, and had a camp — now all of a sudden I could have a Maddy Siegrist camp,” said Siegrist, who is coming back to Villanova for a fourth playing season. “I did private training at Villanova and at home. The easiest thing to do because I could benefit and enjoy it.”
The T-shirts were a homegrown production, ordered up from a place in New York, with her mother as chief consultant.
“I went and made like 100,” Siegrist said. “I paid out of pocket. Let’s see if they sell. Then they all sold. Wow, that’s great, let’s get 100 more.”
There is an obvious word missing from those shirts.
“They couldn’t say ‘Villanova’ on them,” Siegrist said, adding that she has since made a T-shirt deal with the Vintage Brand to produce her design. “I wasn’t licensed with Villanova in the beginning.”
Siegrist No. 20 Villanova jerseys, the official replicas, began being sold in the university bookstore, she said, along with replica jerseys for last season’s men’s stars Collin Gillespie and Jermaine Samuels, They all got a cut of the profits. All brand new in this NIL world. Previously, the official shirts didn’t include the names of players with eligibility left.
“Collin and I did a signing at the bookstore — we each did an hour in April, right after the season,” Siegrist said. “You were paid for the appearance, but also paid [a cut of the profits] for the shirt.”
Let’s note that Villanova’s role in this enterprise can’t just be following fledging NIL laws and regulations, which pay little attention to Title IX regulations. Could Title IX federal regulations on gender equity play into this NIL landscape? Across the landscape, the answer seems to be: absolutely.
“If schools are not at all involved, and private actors are treating men way better than women, there’s no liability under Title IX,” said leading Title IX attorney Arthur Bryant. “But the schools are almost always involved, in one way or another, whether directly or by allowing their trademark materials to be used.”
Bryant added, “If the schools are involved, there is serious liability risk.”
He’s not the only one thinking that way, as collectives are formed to pay athletes mostly at bigger Power 5 schools.
“I think Title IX is being completely ignored,” said Peter Schoenthal, CEO of a startup called Athliance, which bills itself as an “NIL management and education platform,” with 20 colleges and conferences listed as clients, from the big time of the Kansas Jayhawks to Division III Oberlin College.
“There’s a potential issue with schools paying for access to marketplaces,” said Schoenthal, an attorney. “When those entities have marketplaces where we are seeing 70% opportunities for men, I think that intertwinement could create issues for universities.”
Schoenthal asks a question that could eventually be answered in a courtroom.
“Is the Title IX issue the actual opportunity or the access to the opportunity?” Schoenthal said.
Many colleges are generally being careful in maneuvering through this new landscape.
“When we start talking about resources offered, Title IX and gender equity is at the forefront,” said Kristy Bannon, associate athletic director for compliance and student-athlete affairs at Temple. “The programs and offerings we have available are available for every single student who is a member of a roster in any sport. … For us, it wasn’t even a question, it was a necessity.”
In social media promotion of a partnership with NBC Sports Athlete Direct, under a headline “NIL Lives in Philadelphia,” Temple notes that “NIL opportunities available for ALL TEMPLE student-athletes in the fourth-largest sports media market in the United States.”
On its site, NBC Sports Athlete Direct says it “helps college athletes monetize their NIL rights through a marketplace that connects athletes and advertisers.”
“I think there’s a potential issue with schools paying for access to marketplaces,” Schoenthal said. “It is why we never created a marketplace at all. … Nobody knows the true answer. It hasn’t played itself out.”
For instance, what about NIL collectives, the hottest area of big-time NIL business, where boosters of a school typically pool money to provide NIL opportunities for athletes? This area is getting most of the NIL attention, with rumors of huge payouts in the millions to specific athletes. Is that the free market at work? You get into gray areas pretty quickly, with the NCAA not rushing to fill in all the blanks.
Certainly, star power has changed the financial equation in all sorts of directions. Alabama quarterback Bryce Young, the 2021 Heisman Trophy winner, reportedly had earned close to $1 million in NIL deals last season. UConn star basketball player Paige Bueckers reportedly earned in a similar range from deals with Gatorade and other companies.
“Just as with the men, it can benefit the most well-known women,” said Penn adjunct assistant professor Karen Weaver, a former college coach and athletic director, mentioning basketball players such as Bueckers, Iowa’s Caitlin Clark, and South Carolina’s Aliyah Boston. “Those women had so much capital inside women’s basketball. But tell me: Who are the top women’s lacrosse players?”
That’s maybe how NIL was originally envisioned, for men and women, stars earning money off their stardom. The collectives bring in other questions, including whether money is being promised to recruits in advance. That could conceivably fall into a legal realm under Title IX. That’s why companies such as the one Schoenthal founded promote themselves as “the firewalls from potential liability.”
“As a university president or someone in a similar position, you really would want to know what is going on with the collectives, what they’re doing with the athletes so they’re not getting the athletes in trouble,” sports attorney Mit Winter told Weaver on her podcast, Trustees and Presidents. “On the other hand, there might be a state law or other rules that are preventing you from having a serious relationship with these collectives.”
Pennsylvania’s current NIL law says a “University may step in and prohibit a student-athlete from entering into a NIL agreement that conflicts with an, ‘existing institutional sponsorship arrangement at the time the college student-athlete discloses a contract to the [university].’ ” The university could also step in if NIL involvement conflicts with “the institutional values of the university.”
Winter talked about the concern some athletic administrators have of money from donors going to the collectives instead of directly to the schools, causing budget shortfalls. That’s not a direct Title IX issue, but all budget issues impact equity issues.
There are other issues. Weaver talked about entities paying for bathing suit shots of female student-athletes, “I don’t want to turn this into a misogynistic thing. I see a little bit of that because people will pay for that.” Weaver suggested that the NIL market “needs to develop and appreciate what other avenues the women can bring to this.”
Maybe the top women’s basketball player who has come out of the city of Philadelphia in the last decade or more, Diamond Johnson is trying not to be passive in this new environment. She has hired an agent, has deals with companies such as Bojangles and Fortnight, and, like Siegrist, has put her own likeness on apparel. (You can find her merchandise on Millions.co.)
As a senior at Neumann Goretti, Johnson was famously snubbed for the 2020 McDonalds All-American game, sparking outrage in her sport, even from coaches such as Dawn Staley who recruited Johnson but didn’t sign her. Maybe Johnson can use that now as an endorsement opportunity? Shouldn’t McDonald’s get ahead of that and offer her a deal?
“Right?” Johnson said.
Or maybe Wendy’s or Burger King could take advantage?
“Right, for sure,” Johnson said.
After making second-team all-Big Ten averaging 17.6 points a game as a freshman at Rutgers, Johnson transferred to North Carolina State where she averaged 10.8 points and was named Atlantic Coast Conference sixth player of the year as a sophomore. Has N.C. State gotten involved in her NIL deals? Johnson said yes in one sense, with a Pack of Wolves collective formed by N.C. State fans. “It’s all sports,” Johnson said, mentioning opportunities such as “Meet and Greets” she has taken part in.
“The coaches, they want to know what I’m doing,” Johnson said of any NIL deals. “But it’s separate from N.C. State.”
At Villanova, Siegrist said she also had an Outback Steakhouse deal in tandem with Gillespie — the company had signed up a male and female basketball player at six schools. In return for social media posts, “they give you a bunch of gift cards.” She spread that with her teammates, Siegrist said. “Any time they’re hungry, get those gift cards,” she said.
Overall, Siegrist said of her NIL deals, “It’s a way to make extra money in college. The shirts thing is pretty cool because you don’t have to do a ton. My thing, during the season, I just wanted to focus on basketball.”
While some players at other schools have signed with agents, Siegrist said she hasn’t yet. “A few have been in contact. I hope to during the offseason.”
She has done other smaller deals, such as posting a photo of a Philadelphia law firm Pond Lehocky Giordano on Instagram.
“It is weird,” Siegrist said of how approaches are often made. “A lot of stuff is through [direct messages] on Instagram. You’re trying to figure out which are legit and which aren’t. It is a little different.”
As for whether Villanova alumni will up the ante while she is in school, Siegrist can’t be sure.
“I think, from my understanding, there are few things in the works right now as far as Villanova alums regarding [NIL],” Siegrist said. “I think everyone was trying to understand it for the first few months.”
As the landscape keeps shifting, make no mistake, Title IX implications ride alongside.
“It is important to read the tea leaves,” Schoenthal said.